Topic: Law and Civil Liberties

Under Current Law, Can the Government Ban Books?

The Citizens United case currently before the Supreme Court may radically reshape campaign finance law for years to come. Former FEC commissioner Bradley A. Smith spoke at a forum on the case a day before the rehearing before the high court.

According to Smith, who is also the founder of the Center for Competitive Politics,  under current law, the government does have the power to ban certain books  if those books are published by a corporation, as ruled by the Supreme Court in 1990.

Watch:

New Report: Honduras Acted Constitutionally

A new report by the non-partisan Law Library of Congress now publicly available reviews the legal and constitutional issues surrounding Honduran President Zelaya’s removal from office. The report concludes that both the Supreme Court of Honduras and the Congress acted in full accordance with the constitution in removing the president from power. The study, first reported by Mary O’Grady in the Wall Street Journal this Monday, is consistent with the point she, Juan Carlos Hidalgo, and others have made with regard to Washington’s unbelievable policy of undermining Honduras’ rule of law by insisting on Zelaya’s return to power, calling his removal a coup, and otherwise sanctioning the small nation’s Supreme Court by suspending the visas of its justices.

The Strategic Corporal

Retired Generals Charles Krulak and Joseph Hoar have an op-ed over at the Miami Herald making some important arguments against using “enhanced interrogation techniques.” Krulak served as Commandant of the Marine Corps and Hoar served as CENTCOM Commander. CENTCOM is short for Central Command, the regional military command responsible for the Middle East.

Krulak and Hoar endorse the Interrogation Task Force’s recommendation that all future detainee interrogations be conducted within the guidelines in the Army Field Manual on Interrogation. In doing so, they make a point that may be difficult to see unless you have been a leader in the military: condoning torture, or any mistreatment of prisoners, erodes discipline in a military organization.

Rules about the humane treatment of prisoners exist precisely to deter those in the field from taking matters into their own hands. They protect our nation’s honor.

To argue that honorable conduct is only required against an honorable enemy degrades the Americans who must carry out the orders. As military professionals, we know that complex situational ethics cannot be applied during the stress of combat. The rules must be firm and absolute; if torture is broached as a possibility, it will become a reality. Moral equivocation about abuse at the top of the chain of command travels through the ranks at warp speed.

Krulak is no stranger to this topic. In a 1999 article, The Strategic Corporal: Leadership in the Three Block War, Krulak highlighted the difficulty of deploying to low-intensity conflicts and the challenges that enlisted Marines (and soldiers) will face. In a single conflict, a unit could be engaged in humanitarian aid on one block, quelling a riot on the next, and fighting pitched urban combat on the third. Small units led by a corporal may have to take on captain-sized problems. Krulak stressed the importance of leadership and character at the lowest level so that when an officer is not present, low-level leaders will act with the necessary initiative and decision-making skills. The cornerstone for all of this is character.

Honor, courage, and commitment become more than mere words. Those precious virtues, in fact, become the defining aspect of each Marine. This emphasis on character remains the bedrock upon which everything else is built. The active sustainment of character in every Marine is a fundamental institutional competency – and for good reason.

Torture apologists may be found aplenty inside the Beltway, but those who have worn the uniform know better.

NYT: We Don’t Deserve First Amendment Protection!

I assume others have pointed this out already, but there’s something very odd about a Tuesday editorial in The New York Times arguing that campaign finance regulations that stifle the political speech of corporations must be upheld in the Citizens United case currently under consideration before the Supreme Court:

The question at the heart of one of the biggest Supreme Court cases this year is simple: What constitutional rights should corporations have? To us, as well as many legal scholars, former justices and, indeed, drafters of the Constitution, the answer is that their rights should be quite limited — far less than those of people.

In that case, surely it’s time to revisit some of the 20th century’s seminal free speech rulings. The idea that public figures cannot use libel law to squelch criticism unless they can prove an attack is intentionally or recklessly false, for instance, comes to us by way of New York Times Company v. Sullivan—a case in which the so-called “protected speech” was a paid advertisement run by a filthy corporation!  And what about the celebrated Pentagon Papers case, in which the Court found that only in the most extreme cases can the government resort to “prior restraint” of speech? Why that’s New York Times Company v. United States. In both cases, of course, the speech in question had political significance—perhaps even the potential to affect elections. In the Pentagon Papers case, by the way, the counsel for the Times was famed First Amendment lawyer Floyd Abrams, who also argued Citizens United.

Don’t worry, though, it’s only corporations like The New York Times that will lose speech protections.  If you, as a brave individual, want to say something controversial on your blog—though you’ll probably want to do it on a server you own personally, just in case—you’re totally in the clear. And if the federal government decides to sue, you’ll be totally free to use as much of your personal savings as you want to fight back.

State Secrets, State Secrets Are No Fun

Despite Barack Obama’s frequent paeans to the value of transparency during the presidential campaign, his Justice Department has incensed civil liberties advocates by parroting the Bush administration’s broad invocations of the “state secrets privilege” in an effort to torpedo lawsuits challenging controversial interrogation and surveillance policies. Though in many cases the underlying facts have already been widely reported, DOJ lawyers implausibly claimed, not merely that particular classified information should not be aired in open court, but that any discussion of the CIA’s “extraordinary rendition” of detainees to torture-friendly regimes, or of the NSA’s warrantless wiretapping, would imperil national security.

That may—emphasis on may—finally begin to change as of October 1st, when new guidelines for the invocation of the privilege issued by Attorney General Eric Holder kick in. Part of the change is procedural: state secrets claims will need to go through a review board and secure the personal approval of the Attorney General. Substantively, the new rules raise the bar for assertions of privilege by requiring attorneys to provide courts with specific evidence showing reason to expect disclosure would result in “significant harm” to national security. Moreover, those assertions would have to be narrowly tailored so as to allow cases to proceed on the basis of as much information as can safely be disclosed.

That’s the theory, at any rate. The ACLU is skeptical, and argues that relying on AG guidelines to curb state secrets overreach is like relying on the fox to guard the hen house. And indeed, hours after the announcement of the new guidelines—admittedly not yet in effect—government attorneys were singing the state secrets song in a continuing effort to get a suit over allegations of illegal wiretapping tossed. The cynical read here is that the new guidelines are meant to mollify legislators contemplating statutory limits on state secrets claims while preserving executive discretion to continue making precisely the same arguments, so long as they add the word “significant” and jump through a few extra hoops. Presumably we’ll start to see how serious they are come October. And as for those proposed statutory limits, if the new administration’s commitment to greater  accountability is genuine, they should now have no objection to formal rules that simply reinforce the procedures and principles they’ve voluntarily embraced.

An Open and Honest Debate About Drug Policy in El Paso, Texas

El PasoLast January, the city council of El Paso, Texas, unanimously approved a resolution urging the federal government to support “an honest, open, national debate on ending the prohibition on narcotics.” Soon afterwards, the mayor of El Paso received a call from Washington, DC demanding that he veto the resolution, otherwise his city would be cut off from some federal money. He did. However, the city council approved a new resolution calling for a conference assessing U.S. drug policy and the War on Drugs.

That led to the University of Texas at El Paso (UTEP) organizing a two-day conference on the 40th anniversary of the War on Drugs with leading experts from all over the world in the field of drug policy. The event was heavily attended by students, journalists and people interested in the subject. I had the chance to speak on the first panel, addressing the “History, Successes and Failures” of the War on Drugs. Not surprisingly, I failed at pointing out a single success from the current prohibitionist approach to drug policy. A summary of that first panel is available here.

Unfortunately, two Obama czars (on border and drugs) called off their participation just days before the conference. It was a missed chance to find out if there’s any change going on with the new administration regarding drug policy. In his opening remarks, Beto O’Rourke, the city councilman who introduced the original resolution that was later vetoed, said that he never imagined that calling for an “open and honest debate” on drug policy was going to be so controversial.

El Paso is at the crossroads of the War on Drugs. One of the safest cities in the Unites States, it’s just across the Rio Grande from one of the most dangerous cities in the world, Mexico’s Ciudad Juárez, where so far this year more than 1,000 people have died in drug related violence. El Paso is not isolated from this carnage. Both cities are deeply intertwined economically, culturally and by blood ties. “Todos somos juarences” (we are all Juarezians) was the most common phrase from residents of El Paso expressing concern about the situation in their sister city.

Needless to say, the participants at the conference were highly critical of the War on Drugs. Some speakers focused on the empirical evidence coming from countries with flexible drug laws, such as the Netherlands and more recently Portugal. Luis Astorga, a professor at the Autonomous University of Mexico (UNAM) gave an interesting presentation on the history of drug cartels in Mexico. Other presentations dealt with the social consequences of prohibition, and how the War on Drugs is affecting communities in Mexico and the United States.

As I’ve written earlier, in Latin America there have been growing calls in recent months to reconsider the War on Drugs. It is about time that this discussion also takes place in the United States. Kudos to UTEP and the city of El Paso for taking that step.

Cato Supreme Court Review on the Road

With last week’s Constitution Day conference behind us (watch it here) – and the release of the 2008-2009 Cato Supreme Court Review – I can finally escape the office where I’ve been holed up all summer.  Yes, it’s time to go on the road and talk about all these wonderful legal issues we’ve learned about over the past year, as well as previewing the new Supreme Court term.

To that end, below the jump is my fall speaking schedule so far.  All these events are sponsored by the Federalist Society (and in some cases co-sponsored by other organizations) and all are open to the public.

If you decide to attend one of the presentations after learning of it from this blog post, please feel free to drop me a line beforehand, and do introduce yourself after the event.

Sept. 24 at 11:50am - DePaul Law School, Chicago - Debate on the Second Amendment post-Heller

Sept. 24 at 4:30pm - Chicago-Kent School of Law - Panel on Rule of Law in Iraq

Sept. 29 at 5:00pm - University of Cincinnati Law School - Rule of Law and Economic Development

Sept. 30 at 12:00pm - Capital University Law School (Columbus, OH) - Review of October Term 2008/Preview of October Term 2009

Sept. 30 at 3:30pm -  Ohio Northern School of Law (Ada, OH) - Debate on Ricci and Affirmative Action in Employment

Oct. 1 at 12:00pm - University of Toledo Law School - Debate on Ricci and Affrimative Action in Employment

Oct. 1 at 5:00pm - Thomas M. Cooley Law School (Auburn Hills, MI) - Immigration and the Constitution

Oct. 5 at 12:00pm - University of Pennsylvania Law School - Debate on the Use of Foreign Law in Constitutional Interpretation

Oct.6 at 5:30pm - Blank Rome LLP in Philadelphia (Federalist Society Lawyers Chapter; small admission fee) - Panel on Rule of Law in Iraq

Oct. 8 at 1:00pm - Penn State-Dickinson Law School (University Park) - October Term 2009 Preview

Oct. 13 at 5:15pm - George Mason University Law School (Arlington, VA) - October Term 2009 Preview

Oct. 26 at 12:00pm - Florida International University Law School (Miami) - Topic TBA

Oct. 27 at 12:30pm - University of Miami Law School - Topic TBA